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United States v. Mascheroni

United States District Court, D. New Mexico

October 31, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
PEDRO LEONARDO MASCHERONI, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court on Defendant Pedro Leonardo Mascheroni's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody, filed on November 11, 2016. [CV Doc. 1; CR Doc. 579] Defendant seeks to vacate his conviction and sentence, alleging that he received ineffective assistance of counsel in the negotiation of his plea agreement. The Government filed its response on March 13, 2017, contending that Defendant's “motion should be summarily denied, without a hearing, because his claims are waived by his knowing and voluntary collateral attack waiver and, even if not waived, his conclusory, self-serving, and speculative motion fails to establish that his experienced team of lawyers provided constitutionally inadequate representation.” [CV Doc. 7 at 1; CR Doc. 592 at 1] The Court, having reviewed the briefs, [1] the record, and the relevant law, concludes that an evidentiary hearing is not required. For the reasons explained below, Defendant's § 2255 motion is denied, a certificate of appealability will not be issued, and judgment shall be entered against Defendant.

         I. BACKGROUND

         This case has a long and complex procedural and factual history, which will be summarized herein only to the extent necessary to review the merits of Defendant's § 2255 motion. Defendant, formerly a Ph.D. scientist employed by the Los Alamos National Laboratory's (LANL) nuclear weapons division, was charged by Indictment on September 16, 2010 as follows: (1) Count 1 - conspiracy to communicate restricted data in violation of 42 U.S.C. §§ 2274(a), 2014; (2) Counts 2 and 3 - aiding and abetting the communication of restricted data in violation of 42 U.S.C. §§ 2274(a), 2014 and 18 U.S.C. § 2(a); (3) Count 4 - conspiracy to participate in the development of an atomic weapon in violation of 42 U.S.C. §§ 2122, 2272(b), 2014; (4) Count 5 - aiding and abetting an attempt to participate in the development of an atomic weapon in violation of 42 U.S.C. §§ 2122, 2272(b), 2014 and 18 U.S.C. § 2(a); (5) Count 6 - conspiracy to sell, convey, or convert restricted data in violation of 18 U.S.C. § 371; (6) Counts 7 and 8 - aiding and abetting the conveyance or sale of restricted data in violation of 18 U.S.C. §§ 641 and 2(a); (7) Count 9 - retention and conversion of restricted data in violation of 18 U.S.C. § 641; and (8) Counts 10 - 15 - false, fictitious, or fraudulent statement or representation in violation of 18 U.S.C. § 1001(a)(2). [CR Doc. 2] Attorneys Amy Sirignano and Kirtan Khalsa were appointed to represent Defendant pursuant to the Criminal Justice Act. [CR Docs. 14, 48] On April 6, 2011, the Court permitted Attorney Sirignano to withdraw and substituted Robert Cooper as lead counsel for Defendant. [CR Docs. 116, 117].

         On November 10, 2010, the Government filed a Motion for Protective Order, asking the Court to enter an order that “essentially requires that any party receiving materials as part of the discovery process be limited to using those materials solely for legitimate litigation purposes.” [CR Doc. 50 at 1-2] The Government indicated that the proposed protective order does “not apply to materials being marked as classified” and that the security, protection, and handling of classified materials would be addressed through a separate protective order under the Classified Information Procedures Act (CIPA). [CR Doc. 50 at 1 n.2] Defendant, through his counsel Attorneys Sirignano and Khalsa, opposed the Government's “unprecedented request for an umbrella protective order restricting Dr. Mascheroni's and his counsel's use of all of the non-classified discovery information for which CIPA does not mandate a heightened level of protection.” [CR Doc. 54 at 2].

         On November 13, 2011, the Government moved for a protective order pursuant to CIPA, 18 U.S.C. App. 3 § 3 and Fed. R. Crim. P. 16(d)(1), “to prevent the disclosure of classified and other sensitive information.” [CR Doc. 171] Defendant, through his counsel Attorneys Cooper and Khalsa, opposed the proposed protective order as “vague, overly broad, burdensome and unconstitutional.” [CR Doc. 179] On February 9, 2012, the Court overruled Defendant's objections and adopted the Government's proposed protective order, with some modifications. [CR Doc. 205] Defendant, through his counsel Attorneys Cooper and Khalsa, moved for reconsideration of the Court's adoption of the CIPA protective order, contending in relevant part that it placed “defense counsels' self-interests in conflict with the representation of their client, ” because “counsel are necessarily preoccupied with their potential criminal exposure and the scope of their contractual obligations.” [CR Doc. 219 at 14] Defendant's motion for reconsideration was denied on March 23, 2012. [CR Doc. 229].

         The CIPA protective order required Defendant and his counsel to execute and file with the Court a Memorandum of Understanding (MOU) in order to gain access to the classified discovery. [CR Doc. 230 at ¶ 17] On April 25, 2012, the Government filed an unopposed motion for a status conference, given the failure of Defendant's counsel to execute the MOU. [CR Doc. 235] On June 8, 2012, Defendant, through his counsel Attorneys Cooper and Khalsa, moved to modify the CIPA protective order “to include current updated DOE policy regarding the ‘no comment' policy pertaining to the handling, storage and use of publicly available open source information that may contain classified information.” [CR Doc. 261 at 1].

         In an opinion issued on January 10, 2013, the Court denied Defendant's motion to modify the CIPA protective order and ordered Defendant and his counsel to sign the MOU. [CR Doc. 347] The Court noted that it would “appoint new CJA counsel if counsel do not immediately sign the MOU so that this case can move forward.” [CR Doc. 347 at 7] The Court further noted that if Defendant “continues to refuse to sign the MOU” he cannot view or discuss with his counsel any of the classified or potentially classified discovery. [CR Doc. 347 at 7] The next day, on January 11, 2013, Attorneys Khalsa and Cooper signed and filed the MOU, followed by Defendant on January 31, 2013. [CR Docs. 348, 355].

         On May 7, 2013, Attorney Cooper filed a motion seeking the immediate appointment of “independent CJA counsel to advise Defendant Pedro Leanoardo Mascheroni concerning a conflict of interest between undersigned defense counsel and Pedro Leonardo Mascheroni.” [CR Doc. 398] The Court appointed the Federal Public Defender “to advise the defendant on matters surrounding a possible conflict of interest between defendant and his current counsel.” [CR Doc. 405] The limited appointment of the Federal Public Defender did not “relieve current CJA appointed defense counsel from their full obligations with regard to the representation of [Defendant] or extend those obligations to the Federal Public Defender.” [CR Doc. 405].

         On June 21, 2013, Defendant was charged by Information with the following additional crimes: (1) Counts 1 and 2 - communication of restricted data in violation of 42 U.S.C. §§ 2274(b), 2014 and 18 U.S.C. § 2(a); and (2) Count 3 - retention of national defense information in violation of 18 U.S.C. § 793(e). [CR Doc. 414] On that same date, Defendant, through his counsel Cooper and Khalsa, as well as independent counsel, Assistant Federal Public Defender Richard Winterbottom, entered into a plea agreement with the Government. [CR Doc. 417] Pursuant to the plea agreement, Defendant agreed to plead guilty to Counts 7, 8, and 10 through 15 of the Indictment, as well as Counts 1 through 3 of the Information. [CR Doc. 417 at 2] The plea agreement provides that “Defendant has thoroughly reviewed all aspects of this case with the Defendant's attorneys and is fully satisfied with his attorneys' legal representation, ” that Defendant's “guilty pleas are freely and voluntarily made and are not the result of force, threats, or promises, ” and that Defendant “is pleading guilty because the Defendant is in fact guilty.” [CR Doc. 417 at 1, 29] The plea agreement contains a lengthy admission of facts, spanning twelve pages, in which Defendant admitted to the factual basis for each of the crimes to which he agreed to plead guilty. [CR Doc. 417 at 4-16] The parties agreed, pursuant to Fed. R. Crim. P. 11(c)(1)(C), that Defendant “shall be sentenced to the custody of the Bureau of Prisons for a term of not less than 24 months or more than 66 months, such terms to run concurrent to each other.” [Doc. 417 at 16-17] Lastly, Defendant's plea agreement contained a waiver of appeal rights, which provides as follows:

The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a defendant the right to appeal a conviction and the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant's convictions and sentences, except to the extent, if any, that the Court may impose a sentence that differs from that agreed to by the parties under Federal Rule of Criminal Procedure 11(c)(1)(C). The Defendant further waives any right he may have to additional disclosures from the United States in connection with Defendant's guilty pleas. In addition, the Defendant agrees to waive any collateral attack to the Defendant's convictions and sentences pursuant to 28 U.S.C. §§ 2241 or 2255, or any other writ, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver.

[CR Doc. 417 at 28].

         Concurrent with the entry of the plea agreement, Defendant also executed a Waiver and Consent To Proceed With Counsel After Receiving Independent Advice Concerning Possible Future Conflict of Interest. [CR Doc. 416] In the waiver, Defendant stated that “on May 6, 2013, an issue arose for the first time that I understand may develop into Mr. Cooper and Ms. Khalsa possibly having a conflict of interest with me in the future.” [CR Doc. 416 at 2] Defendant acknowledged that Attorney Winterbottom had been appointed as independent counsel to advise him about the possible future conflict of interest and that he had “discussed and reviewed every part of this Waiver and Consent, ” as well as the future possible conflict of interest, with Attorney Winterbottom. [CR Doc. 416 at 2, 3] Defendant did not believe that a conflict of interest existed, but “[i]f the Court were to find that Mr. Cooper and Ms. Khalsa somehow have a conflict of interest at this point in time, it is my wish to, and I do, waive any conflict of interest that may exist and I consent to Mr. Cooper and Ms. Khalsa continuing to represent me in this matter for the plea I am about to enter.” [CR Doc. 416 at 3] Defendant affirmed that he “want[s] to plead guilty” and that his “decision to plead guilty has nothing to do with, and has not been influenced by the conflict of interest issue that is the subject of this document.” [CR Doc. 416 at 3] Defendant further affirmed that he executed the waiver “knowingly, intelligently, and voluntarily” and that “[n]o one has forced me to make this waiver or to consent nor has anyone threatened me or otherwise induced me to make this waiver or to consent.” [CR Doc. 416 at 3].

         On June 21, 2013, the Court conducted a plea hearing, at which Defendant was represented by Attorneys Cooper, Khalsa, and Winterbottom. [CR Doc. 452] During the plea colloquy, the Court asked Defendant whether he was “satisfied with the legal counsel, legal representation, and legal advice given to you in this case by your counsel, Mr. Cooper, Ms. Khalsa, and then special counsel Mr. Winterbottom” and Defendant responded that he “enjoyed one of them more than the others, but I am going to keep it private. I like them all.” [CR Doc. 452 at 7] The Court asked Defendant whether he had “had an opportunity to read and discuss” the Waiver and Consent To Proceed With Counsel After Receiving Independent Advice Concerning Possible Future Conflict of Interest “with Mr. Winterbottom before [he] signed it” and Defendant responded “Yes.” [CR Doc. 452 at 7-8] The Court also asked Defendant whether he understood the contents of the waiver and Defendant responded “Yes.” [CR Doc. 452 at 8].

         With respect to the plea agreement, Defendant affirmed under oath that he had read and discussed the plea agreement with his defense counsel and that he understood the plea agreement. [CR Doc. 452 at 9] Defendant stated that the decision to plead guilty was “[v]ery painful, very difficult, ” but that it was his “own decision” that he had made voluntarily after consulting with counsel. [CR Doc. 452 at 10] Defendant admitted to the factual basis of the plea and the Court informed Defendant of his constitutional rights, including his right to have a jury trial. Defendant assured the Court that he understood his rights and that he had decided, after consultation with Attorneys Cooper and Winterbottom, that it was in his best interest to plead guilty. [CR Doc. 452 at 20] Thereafter, Defendant pleaded guilty and the Court found Defendant's guilty plea to be “a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of the offenses.” [CR Doc. 452 at 25] The Court accepted Defendant's guilty plea and adjudicated him guilty of the offenses listed in the plea agreement. [CR Doc. 452 at 25].

         Approximately two and a half months after the entry of Defendant's guilty plea, Attorneys Cooper and Khalsa moved to withdraw as counsel for Defendant, because the relationship between Defendant and “counsel ha[d] deteriorated to the point that continued representation of Dr. Mascheroni cannot be achieved without substantial and irreparable impairment to Dr. Mascheroni's rights and interests in this matter.” [CR Doc. 443 at 1] Following a hearing, the Court found that “there had been a total breakdown in communication” between Defendant and Attorneys Cooper and Khalsa, despite the “best efforts” of Attorneys Cooper and Khalsa, and that Defendant had “substantially and unreasonably contributed to the communication breakdown.” [CR Doc. 504 at 2] The Court granted the motion to withdraw in part, allowing Attorneys Cooper and Khalsa “to withdraw from active representation of Defendant, ” but to “remain available on a standby basis in light of counsel's substantial institutional knowledge of this case.” [CR Doc. 504 at 2] The Court ordered Defendant's case to “proceed to sentencing, and that Mr. Richard Winterbottom will continue to represent Defendant as substitute counsel for purposes of sentencing.” [CR Doc. 504 at 2].

         On July 22, 2014, Defendant, through his counsel Attorney Winterbottom, moved to withdraw his guilty plea. [CR Doc. 520] The Court declined to hold an evidentiary hearing on Defendant's motion, because “there is a well-developed record which supports the Government's contention that Defendant's efforts to negate the guilty plea he entered into are conclusory and inconsistent with statements he made during the plea colloquy.” [CR Doc. 526 at 4] The Court found that there was not a fair and just reason to permit Defendant to withdraw his guilty plea, since he could not make a credible claim of innocence, his guilty plea was knowing and voluntary, and he had received quality assistance of counsel. [CR Doc. 526] The Court further found that withdrawal of Defendant's guilty plea would prejudice the Government, inconvenience the Court, and waste judicial resources. [CR Doc. 526] Therefore, the Court denied Defendant's motion to withdraw his guilty plea. [CR Doc. 526].

         On January 28, 2015, the Court conducted a sentencing hearing, at which the Government presented videotaped evidence of Defendant's guilt and Defendant had an opportunity to present evidence and address the Court. [CR Doc. 572; see also CR Doc. 554] After hearing all of the evidence, the Court sentenced Defendant to the custody of the Bureau of Prisons for a term of 60 months as to each Counts 7 and 8 of the Indictment, Counts 1 through 3 of the Information, and Counts 10 through 15 of the Indictment, said terms to run concurrently, for a total term of 60 months. [CR Doc. 558, 564] The Court also imposed a term of 3 years of supervised release as to each Counts 7, 8, and 10 through 15 of the Indictment, and Counts 1 through 3 of the Information, said terms to run concurrently for a total term of 3 years. [CR Doc. 564 at 5] The Court rendered judgment on Defendant's convictions and sentence on January 29, 2015. [CR Doc. 564].

         Defendant appealed to the United States Court of Appeals for the Tenth Circuit, which dismissed Defendant's appeal in light of the waiver of appellate rights in the plea agreement. [CR Doc. 576; see United States v. Mascheroni, 612 F. App'x 504 (10th Cir. 2015) (per curiam)] Specifically, the Court of Appeals determined that “[t]he substantial evidence of the plea agreement and colloquy . . . establishes that his plea was knowing and voluntary.” [CR Doc. 567-1 at 5] The Court noted that:

Dr. Mascheroni, who has a Ph.D. and is a former scientist at Los Alamos National Laboratory nuclear weapons division, signed the plea agreement, which stated that he freely and voluntarily entered his plea and that he had reviewed it with counsel. Furthermore, the district court engaged him in a proper plea colloquy to make sure he understood what the plea agreement entailed. He admitted reading and discussing the plea agreement at length with counsel, voluntarily entering into the plea agreement, understanding the maximum possible penalties for the offenses to which he was pleading and the penalties covered in the plea agreement, and understanding that he waived his right to appeal his sentence. In addition, at the colloquy, he admitted the lengthy stipulation of facts contained in the plea agreement, and counsel stated that they had spent considerable amount of time with Dr. Mascheroni concerning the facts stated in the plea agreement and were satisfied that he ...

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